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COMMONWEALTH EX REL. HENDRICKSON v. HENDRICK. (04/11/56)

THE SUPERIOR COURT OF PENNSYLVANIA


April 11, 1956

COMMONWEALTH EX REL. HENDRICKSON, APPELLANT,
v.
HENDRICK.

Appeal, No. 11, Oct. T., 1956, from order of the Court of Common Pleas No. 4 of Philadelphia County, June T., 1955, No. 1785, in case of Commonwealth ex rel. Robert Hendrickson v. Edward J. Hendrick, Superintendent, Philadelphia County Prison. Order affirmed.

COUNSEL

Robert Hendrickson, appellant, in propria persona.

Vincent G. Panati, First Assistant District Attorney, Victor Wright and Christopher F. Edley, Assistant District Attorneys, Victor H. Blanc, District Attorney, and James N. Lafferty, Deputy District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

[ 181 Pa. Super. Page 46]

OPINION PER CURIAM

The Court of Common Pleas No. 4 of Philadelphia County dismissed relator's petition for a writ of habeas corpus. Relator appealed from the order entered August 12, 1955, after hearing at which no testimony was taken.

Relator had been convicted on July 22, 1952, on charges of burglary and larceny, and sentenced to the Philadelphia County Prison for not less than three years nor more than fifteen years (No. 1678, June Sessions,

[ 181 Pa. Super. Page 471952]

, in the Court of Quarter Sessions of Philadelphia County).*fn1

The present petition for writ of habeas corpus averred that relator was convicted in violation of the Fourteenth Amendment, apparently because the arresting officer did not appear and testify at the trial; and that he was convicted on perjured testimony, his testimony being a denial of the testimony of other witnesses.

The court below, in an opinion by Judge HAGAN, in dismissing relator's petition, said in part: "These arguments are the type which our appellate courts have repeatedly stated should have been raised by a motion for new trial and not by habeas corpus: Commonwealth ex rel. Howard v. Claudy, 175 Pa. Superior Ct. 1; Commonwealth ex rel. Fox v. Tees, 175 Pa. Superior Ct. 453; and Commonwealth ex rel. Scasserra v. Keenan, 175 Pa. Superior Ct. 636. ... An examination of the history of this case reveals the following post-trial proceedings: 1. Petition for writ of habeas corpus, C.P. No. 7, September Term, 1952, No. 1996. Denied by Judge CARROLL on October 24, 1952. 2. Petition for writ of coram nobis. Denied by Judge REIMEL on January 16, 1953. 3. Petition for writ of habeas corpus, C.P. No. 1, June Term, 1953, No. 1884. Denied by Judge MACNEILLE in an opinion filed on July 3, 1953. 4. Motion in arrest of judgment nunc pro tunc. Dismissed

[ 181 Pa. Super. Page 48]

    by Judge ALESSANDRONI on May 7, 1954. We have examined the record of these prior proceedings, and they reveal that the same questions here raised were before the court in the prior proceedings and were decided adversely to the relator. Relator appealed from none of these prior decisions."*fn2

Referring to repetitious petitions, we stated in Com. ex rel. Young v. Day, 180 Pa. Superior Ct. 276, 279, 119 A.2d 559, 561: "A petition for a writ of habeas corpus which is repetitious of a previous petition should be dismissed, for a second petition cannot be employed as a device to secure subsequent appellate review of adjudicated matters from which a timely appeal could have been taken. Com. ex rel. Baerchus v. Burke, 172 Pa. Superior Ct. 400, 403, 94 A.2d 87 (1953); Com. ex rel. Gaito v. Claudy, 172 Pa. Superior Ct. 236, 93 A.2d 870 (1953); Com. ex rel. Allen v. Claudy, 170 Pa. Superior Ct. 499, 87 A.2d 74 (1952)."

Disposition

Order of the court below is affirmed.


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